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Getting The Deal Through


Robert S Peckar and Michael S Zicherman

Peckar & Abramson PC

Friday 10 August 2018

If you want to see the future, read science fiction comic books or novels, because the fiction of the past is becoming the reality of today. For those of us who were born in the first half of the last century (and yes, there are still some of us actively practising construction law!), we can look back to the days of the Dick Tracy comic books to recall the impossible concept of a wristwatch-type device that Dick Tracy could talk into like a telephone and see images on like a television. Imagine that! Or imagine spaceships landing on the moon or planets, or futuristic novels with cover illustrations of cities where people commuted in flying taxis and autonomous vehicles. These and many other images were all visions of a future that no one at that time realistically believed were achievable. After all, they were fiction.

Fast forward to 2018, with not only iWatches that transmit conversations and images like the Dick Tracy comic book watch, but also iPhones that can compute, calculate and use artificial intelligence to learn what we like and how to make it simpler for us to get it, at speeds faster than computer systems that once filled entire warehouses. A manned mission to Mars also is being planned as a commercial enterprise. And cars are already riding the roads without anyone’s hands on the steering wheel. Technologies and innovations that once seemed light years away are now discussed in terms of ‘within the next few years’.

As the rest of the world continues to change technologically, so too does the construction industry and construction law. Construction lawyers have already seen the impact of building information modelling (BIM) and integrated project delivery (IPD) on the way construction projects are designed and managed. There are literally hundreds of new apps under development intending to refine yet further the construction process through the enhanced use of artificial intelligence, including one group of apps that use drones to map the progress of projects to enable management to recognise weaknesses in project logistics, productivity, security, safety and other important project elements. Aside from construction technology, though, the projects being built are changing dramatically. Two examples of projects of this new age are indicative of how the world of construction is changing. These projects are not ‘beta tests’. These projects are a window into a major shift that will define the projects that construction attorneys will address now and in the future.

One stunning example is the Oasia Hotel in downtown Singapore, which was awarded the prestigious Best Tall Building Worldwide award by the Council on Tall Buildings and Urban Habitat (CTBUH), the premier organisation for those thousands of professionals involved in conceiving what the urban habitat is going to look like over the next few years. This award is given to the project that demonstrates a substantial commitment to outdoor communal living spaces and connects the landscape to the cityscape. In making this award, the CTBUH stated: ‘The winner [of this year’s award] stands out among the grey and blue high-rises of Singapore with its plant-covered façade of red and green, which connects to the green of the cityscape. Landscaping is used extensively as an architectural surface treatment, and forms a major part of the development’s material palette, with a total of 54 species of plants climbing along the aluminium mesh façade screen . . . [providing] respite and relief to its occupants, neighbours and city.’

While this new form of urban construction has achieved architectural success, construction lawyers will readily realise that the new technologies used to create buildings covered in plants, watering systems, systems to allow landscape maintenance, the impact over time of plants growing on tall buildings, new materials put to new uses and other innovations will not be without growing pains, and novel new issues and disputes.

However, the urban landscape is not only being transformed above ground, but is rapidly changing below ground as well. For example, in the US, the City of Chicago and Elon Musk, the creator of the Tesla electric car, have announced a new joint venture to construct what will be called the Chicago Express Loop. This project will involve the construction of a system of 14-foot-wide tunnels, located 30-60 feet underground, running from the centre of Chicago to O’Hare International Airport, in which battery-powered electric vehicles will transport passengers at speeds of up to 150 miles per hour, reducing the one- or two-hour trip by traditional vehicles to less than 15 minutes. This no-emissions form of high-speed transportation can eliminate the heavily trafficked delays that most major cities suffer, dramatically reduce the time to travel from inner cities to distant airports, and eradicate the consequent environmental impacts generated from cars and buses. If this concept is economically successful in Chicago, how long will it be before massive tunnel boring will be occurring in São Paulo, Mumbai, Moscow, Atlanta and so on in major cities throughout the world?

Projects of this sort have traditionally created opportunities for construction lawyers to guide clients from the earliest phases of the project to close out. Sound legal advice and guidance from experienced construction lawyers is not something that can be readily replaced by technology. And so, this book offers its readers valuable insight from leading, experienced construction law practitioners into the ways different jurisdictions deal with the typical legal issues presently facing construction industry participants in their respective jurisdictions. Still, while we all deal with the legal issues of the day, from the mundane to the exotic, it is interesting to muse about the future and what the introduction to this book may look like in the not too distant future.

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